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QBCOF 96/0365/D

QBCOF 96/0422/D

IN THE SUPREME COURT OF JUDICATURE

(MR JUSTICE JUDGE )

Royal Courts of Justice

Strand

London WC2

Wednesday 13 November 1996

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE KENNEDY

LORD JUSTICE PHILLIPS

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R E G I N A

- v -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

EX PARTE MOHAMMED FAYED

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R E G I N A

-v-

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

EX PARTE ALI FAYED

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(Transcript of the Handed-down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

MR M BELOFF QC and MR M SHAW and MR R SINGH (Instructed by Palmer Cowan, London W1X 5AE) appeared on behalf of the Appellants.

MR S RICHARDS and MR S CATCHPOLE (Instructed by The Treasury Solicitor, London, SW1H 9JS)) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

JUDGMENT

THE MASTER OF THE ROLLS: This appeal raises issues which concern the relationships between the legislature, the executive and the courts. This is because of the terms of section 44(2) of the British Nationality Act 1981 (the "Act"). Section 44(2) lays down that in the case of decisions to which the section applies the Home Secretary is not "required to assign any reason for the grant or refusal of any application under" the Act and the decisions "shall not be subject to appeal to, or review in, any court".

Normally any decision taken by a minister under a discretion conferred on him by Parliament which affects a member of the pubic is required to be exercised in a manner which is fair or, as use to be said, in accordance with the rules of natural justice. This is a long established principle confirmed by a series of cases in the House of Lords, a recent example of which is R v Secretary of State for the Home Department , ex parte Doody [1994] 1 AC 531. In that case, in a speech with which all the members of the House agreed, Lord Mustill summarised the principle in these terms (at p 560 D\G):

"What does fairness require in the present case? My Lords. I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result : or after it is taken, with a view to procuring its modification ; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

It is also a principle of our administrative law that when a decision is taken in manner which breaches the requirement that it should be taken fairly, in the absence of any alternative satisfactory remedy, the member of the public who has been unfairly treated is entitled to a remedy from the High Court on an application for judicial review. In providing a remedy the court is ensuring that decisions of the executive are taken in the manner required by Parliament. This principle was reflected in a statement made by Viscount Simonds in Pyx Granite V M.H.L.G. [1960] A.C.260 when he said;

"It is a principle not by any means to be whittled down that the subjects recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is, as McNair J. called it in Francis v Yiewsley and West Drayton U.D.C. [1957] 2 QB 136 a "fundamental rule" from which I would not for my part sanction any departure."

This statement was made before distinction between public and private law rights had been developed but is equally applicable today to the situations were the courts grant a public law remedy.

The language of section 44(2) obviously could alter the usual position and in order to determine this appeal it is necessary to decide the extent to which the section relieves the Minister from the normal obligation to act fairly and interferes with the ability of the court to play its usual role of protecting members of the public who have been unfairly treated.

Although these appeals raise issues of principle the facts are not unimportant in determining the issues. My task in reciting the facts is made immeasurably easier by my ability to rely heavily on the extremely concise and clear summary of those facts contained in the judgment of Judge J. who dismissed the applications which are the subject of this appeal.

The applicants are two brothers, Mr Mohammed Fayed ("Mohammed") and Mr Ali Fayed ("Ali"). Both were born in Egypt. Mohammed in 1933 and Ali in 1943. Mohammed has lived permanently in this country since 1964. He was granted leave to remain indefinitely. Ali started to live permanently in this country in the late 1960's and was granted indefinite leave to remain in 1977. Mohammed is married to a citizen of Finland, but he has dependent children who are British citizens. Ali is married to a British citizen and his three children are also British citizens. As well as making their homes here the Fayeds have substantial business interests in the United Kingdom.

Both are resident here for tax purposes and are fulfilling their fiscal obligations. Their financial contributions to the commercial life of this country are significant. In addition both brothers have made generous contributions to United Kingdom charities. Their careers both before and after they arrived in this country have, however, been the subject of controversy and considerable media interest.

On the 29th January 1993, Ali submitted an application for naturalization as a British citizen under the Act and this was followed by an application by Mohammed on the 15th February 1994. The applications were made on forms provided for this purpose which request very limited information. On 23rd February 1995 in separate letters, both applications were refused.

During the lengthy period when the applications were under consideration they were merely two out of the 42,000 outstanding applications for British citizenship. The Judge therefore was right in stating in his judgment that "as well as raising questions of moment to the applicants personally, the present case involves consideration of issues of general significance in relation to procedures currently adopted by the Secretary of State to enforce and implement the 1981 Act and the very large number of applications by citizens of other countries for naturalization here".

Because Ali was married to a British citizen, his application was governed by section 6(2) of the Act while Mohammed's was made under section 6(1) of the Act. I will refer to section 6 later but the difference in the two brothers positions are of no significance to the outcome of their appeals.

Ali's application showed that he had been absent from the United Kingdom for a few more than the maximum 90 days allowed in the year prior to submission of his application. However by letter of the 10th May 1995, it is confirmed on behalf of the Home Office that Ali's failure to meet the residence requirement was not the reason for refusal of his application.

In March 1993 the then Home Secretary informed one of Ali's referees that enquiries (the nature of which have not been revealed) were under way and in August 1993 the Home Office requested further documentation including his marriage certificate and confirmation of his tax position.

On the 6th December 1993 the head of the Nationality Division confirmed to those representing Ali, the receipt of all documentation requested and gave, what proved to be an optimistic forecast, that a decision would be made in "up to two months" and that a report was going shortly to the Secretary of State. After consideration by officials Ali's application was passed to a junior minister at the Home Office, Mr Charles Wardle. Subsequently Mohammed's application was also considered by Mr Wardle. In April 1994 the Home Secretary himself suggested further enquiries should be made and following a ministerial reshuffle in July 1994 Mr Nicholas Baker replaced Mr Wardle as Minister responsible for making the decisions. This appeared in a news release of the 24th October 1994 made by the Secretary of Secretary in which he set out his own involvement with the applications. The release also indicated that the applications by the brothers were regarded as being "especially difficult or sensitive". No further enquiries or investigations were made of or directed to either of the applicants.

After questions in the House of Commons during the Autumn 1994, in November 1994 Ali's Solicitors offered to meet the Minister to discuss the application because they were concerned about the delay. They were also concerned that his application might, in some unspecified way, be adversely affected unless it was treated on its own merit. An assurance was given with regard to Ali's concerns but the offer of a meeting was rejected. Discussions were described as "unnecessary".

Neither of the brothers have ever been informed what were the aspects of their applications which have given rise to the difficulties or reservations about their application. Without information as to this it would in practice be impossible for them to try and volunteer information which would support the applications which they have made or any fresh applications which they might want to make in the future.

The letters communicating the decision to refuse the applications were dated the 23rd February 1995 and were, as the judge said "terse in the extreme". They merely informed each of the Fayeds that "after careful consideration your application has been refused". No reasons were given for the decisions so applications were made to the Home Office for reasons for the refusals but they were declined. In March 1995 the applications for leave to apply for judicial review were made. Leave was granted by Popplewell J. Judge J. dismissed the applications for judicial review on 26th February 1996.

The first section to which it is necessary to refer is section 6. This section distinguishes between the two categories of application, those by an applicant who is not married to a British citizen and those by an applicant who is. Section 6 is in these terms:

"(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.

(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen, the Secretary of State is satisfied that the applicant fulfils the requirement of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."

Schedule 1 which is referred to in section 6 is in the following terms:

"1. -(1) Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are in the case of any person who applies for it -

(a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph and

(b) that he is of good character; and

(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and

(d) that either -

(i) his intentions are such that, in the event of a certificate of naturalisation as a British citizen being granted to him, his home or (if he has more than one) his principal home will be in the United Kingdom; or

(ii) he intends, in the event of such a certificate being granted to him, to enter into, or continue in, Crown service under the government of the United Kingdom, or service under an international organisation of which the United Kingdom or Her Majesty's government therein is a member, or service in the employment of a company or association established in the United Kingdom.

(2) The requirements referred to in sub-paragraph (1)(a) of this paragraph are -

(a) that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450 ; and

(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c) that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d) that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.

(3) The alternative requirement referred to in sub-paragraph (1)(a) of this paragraph is that on the date of the application he is serving outside the United Kingdom in Crown service under the government of the United Kingdom

2. If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 do all or any of the following things, namely -

(a) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) or paragraph 1(2)(b), or both, although the number of days on which he was absent from the United Kingdom in the period there mentioned exceeds the number there mentioned;

(b) treat the applicant as having been in the United Kingdom for the whole or any part of any period during which he would otherwise fall to be treated under paragraph 9(1) as having been absent;

(c) disregard any such restriction as is mentioned in paragraph 1(2)(c), not being a restriction to which the applicant was subject on the date of the application;

(d) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d) although he was in the United Kingdom in breach of the immigration laws in the period there mentioned;

(e) waive the need to fulfil the requirement specified in paragraph 1(1)(c) if he considers that because of the applicant's age or physical or mental condition it would be unreasonable to expect him to fulfil it."

It will be noted that, unlike the position as to the other express requirements in paragraph 1(1) the Secretary of State has no express power to dispense with the requirement as to good character under paragraph 2.

Paragraphs 3 and 4 apply to applications under section 6(2). There are no distinctions which are relevant to the issues in this appeal but in general the requirements are less onerous than those contained in paragraph 1.

The next section to which it is necessary to refer is section 44 which as its side note indicates relates to "Decisions involving exercise of discretion" and provides as follows;

"(1) Any decision vested by or under this Act in the Secretary of State Governor or a Lieutenant-Governor shall be exercised without regard to the race colour or religion of any person why may be affected by its exercise.

(2) The Secretary of State, a Governor or a Lieutenant-Governor, as the case may be, shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State or a Governor or Lieutenant-Governor on any such application shall not be subject to appeal to, or review in, any court.

(3) Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act."

Although the Secretary of State has no discretion to grant an application of a person who is not of good character I still regard a decision refused on this ground as one to which section 44(2) applies. Mr Beloff, who appeared on behalf of the Fayeds, accepted that this was the position.

There are other provisions of the Act which give a person who fulfils certain conditions an entitlement to be registered as a British citizen and section 44(2) accordingly does not then apply. It is unclear whether in such cases this is because the decision does not involve the exercise of a discretion or because the applicant has "rights" or both. However this is of no significance. A different example of a provision of the Act which certainly concerns rights is provided by section 40. This section sets out the procedure which has to be followed by Secretary of State if he wishes to deprive a naturalised citizen of his British citizenship. Section 40(6) requires the Secretary of State to give a person in this situation notice in writing informing him of "the ground or grounds on which it is proposed" to make the order and "his right to an inquiry under this section".

An examination of the provisions of the Act to which reference has been made discloses at least three different statutory situations; those where the minister is expressly exempt from being required to give reasons, those where the Minister is neither required to give or exempt from being required to give reasons and those to which section 40(6) applies where a more structured procedure is involved.

Both before Judge J. and this Court the Secretary of State accepted that section 44(2) does not prevent the court exercising its jurisdiction to review a decision on the traditional grounds available on an application for judicial review. Although this is not therefore in issue the reason why the jurisdiction is accepted is of some assistance in determining the questions which are in issue.

The starting point is the decision of the House of Lords in Anisminic [1969] 2 AC 147 where it was held that a provision in legislation that "the determination by the commission of any application made to them under this Act shall not be called in question in any court of law" did not protect a determination which was made as a result of a mistake of law. Such a decision was not protected by the provision because it was a nullity in the sense that it was liable to be quashed by the court. However it is not only the misinterpretation of legislation which would produce this result it was any other error which would justify the intervention of the court on judicial review including a breach of the requirements of fairness. This is made clear by a much quoted passage from Lord Reid's speech at p171 B\G where he said :

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. I may have refused to take into account something which it was required to take into account. It may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to is for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison, Ex parte Armagh [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses "jurisdiction" in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct any error of law."

The same approach was subsequently adopted in a number of cases but for present purposes it suffices to refer to A.G. v Ryan [1980] AC 718 a decision of the Privy Council which I regard as being of the greatest importance to the outcome of this case. Ryan involved an application to be registered as a citizen of the Bahamas. Article 5 of the constitution of the Bahamas provided:

"(2) Any person who...possesses Bahamian status under the provisions of the Immigration Act 1967 and is an ordinary resident in the Bahama Islands shall be entitled upon making application ... to be registered as a citizen of the Bahamas.

(4) Any application for registration under paragraph (2) of this article shall be subject to such exceptions or qualifications as may be prescribed [under an Act of Parliament] in the interests of national security or public policy."

The proviso to section 7 of the Bahamas Nationality Act 1973, entitled the Minister of Home Affairs to refuse an application for registration on specified grounds in paragraphs (a) to (e) or "for any other sufficient reason of public policy". Section 16 of the Act provided:

"The Minister shall not be required to assign any reason for the grant or refusal of any application... under this Act ...and the decision of the Minister... shall not be subject to appeal or review in any court."

Section 16 is clearly an equivalent provision to section 44(2). However Lord Diplock, in giving the judgment of the Board in relation to section 16 said:

"It is by now well established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not "decision" under the Act. The Supreme Court, in the exercise of its supervisory jurisdiction over inferior tribunals, which include executive authorities exercising quasi judicial powers, may in appropriate proceedings, either set it aside or declare it to be a nullity : Anisminic (above)."

"It has long been settled that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principle of natural justice is outside the jurisdiction of the decision making authority. As Lord Selbourne said as long ago as 1885 in Spackman v Plumstead District Board of Works [1885] 10 AC 229, 240 :

"There would be no decision within the meaning of the statute if there were anything ... done contrary to the essence of justice. See also Ridge v Baldwin [1964] AC 40.

Their Lordships, in agreement with all the judges in the court below, would therefore conclude that the ouster clause in section 16 of the Bahamas Nationality Act 1973 does not prevent the court from enquiring into the validity of the Minister's decision on the ground that it was made without jurisdiction and is ultra vires."

The reference by Lord Diplock to natural justice should be noted. The Ryan case was decided and reported before the Act was passed, and it is appropriate to draw the inference that Parliament was not in enacting section 44(2) intending by the ouster provision contained in that section to exclude the ability of the court to review a decision of the Secretary of State on the grounds, for example, that he had not complied with any requirement of fairness which the Act imposed upon him or the express prohibition against discrimination in section 44(1) when considering applications for naturalisation. That this is correct is not in issue.

Having dealt with the question of jurisdiction, it is possible to proceed to consider the matters which are in issue on this appeal. This can be done under three heads:

(a) Would there be any requirement of fairness in the absence of section 44(2) and if so was it breached? (The Fairness Issue)

(b) If so, what is the effect of the provision of section 44(2) which provides that the Secretary of State is not required to give reasons? (The Section 44(2) Issue).

(c) Was the Secretary of State despite section 44(2) required to give the Fayeds reasons? (The Reasons Issue)

It is obvious that the refusal of their application has damaging implications for the Fayeds. This is a matter which is for them, because of their high public profile, of particular significance. The damage is the greater because it is not in dispute that they comply with the formal requirements other than that of good character the relevance of which to the refusal is not known.

Apart from the damaging effect on their reputation of having their application refused the refusal has deprived them of the benefits of citizenship. The benefits are substantial. Besides the intangible benefit of being a citizen of a country which is their and their families' home, there are the tangible benefits which include freedom from immigration control, citizenship of the European Union and the rights which accompany that citizenship, the right to vote and the right to stand in Parliamentary elections. The decisions of the Minister are therefore classically ones which but for section 44(2) would involve an obligation on the Minister making the decision to give the Fayeds an opportunity to be heard before that decision was reached.

The fact that the Secretary of State may refuse an application because he is not satisfied that the applicant fulfils the rather nebulous requirement of good character or "if he thinks fit" underlines the need for an obligation of fairness. Except where non-compliance with a formal requirement other than that of good character, is being relied on, unless the applicant knows the areas of concern which could result in the application being refused in many cases, and especially this case, it will be impossible for him to make out his case. The result could be grossly unfair. The decision maker may rely on matters as to which the applicant would have been able to persuade him to take a different view. It would be a situation to which approach to this court in R v The Gaming Board ex parte Benaim [1970] 2 QB 417 at p430/431 would apply. Lord Mustill's remarks in his speech R v Home Secretary, ex parte Doody [1994] AC 531 at p 560 D/H. would also apply. It is not necessary to refer to the many other authorities to the same effect which could be relied on in support of this conclusion.

This is therefore a case where, ignoring. section 44(2) the courts would intervene to achieve fairness for the Fayeds by requiring the Minister to identify the areas which were causing them such difficulty in reaching their decision. I did not understand Mr Richards really to contend otherwise on behalf of the Secretary of State.

The Section 44 Issue

I have already explained that the fact that section 44 provides that the decision is not to be subject to appeal or review does not effect the obligation of the Secretary of State to be fair or to interfere with the power of the court to ensure that requirements of fairness are met. That this power has no application to this case depends alone on the argument that to comply with what would be the normal requirements to inform the Fayeds of the case which they had to meet would be inconsistent with the express prohibition contained in section 44(2) on the Secretary of State being required to assign any reason for the grant of refusal of any application under this Act . This prohibition it is submitted impliedly excludes the requirement to give the Fayeds and other applicants in the same position the notice which fairness dictates they need to make an application. It is contended that unless this is the situation the intention of Parliament expressed in section 44(2) would be frustrated. I cannot accept that this can possibly be the position. It is wholly inconsistent with the principles of administrative law to which I have referred.

My reasons for this conclusion can be summarised as follows;

A. The suggestion that notice need not be given although this would be unfair involves attributing to Parliament an intention that it has not expressly stated that a Minister should be able to act unfairly in deciding that a person lawfully in this country should be refused citizenship without the courts being able to do anything about it. This involves attributing to the protection which section 44(2) gives in relation to reasons far greater status than that to which it is entitled. English law has long attached the greatest importance to the need for fairness to be observed prior to the exercise of a statutory discretion. However English law, at least until recently, has not been so sensitive to the need for reasons to be given for a decision after it has been reached. So to exclude the need for fairness before a decision is reached because it might give an indication of what the reasons for the decision could be is to reverse the actual position. It involves frustrating the achievement of the more important objective of fairness in reaching a decision in an attempt to protect a lesser objective of possibly disclosing what will be the reasons for the decision.

B. It would be surprising if it was the implied intention of Parliament that the lack of a requirement to give reasons should have the effect of avoiding the requirement to give notice of a possible ground for refusing an application since the Minister can voluntarily both give notice and reasons if he chooses to do so. In other words, it is difficult to attach much weight to a prohibition the Minister is free to ignore. It cannot be based on an objection of principle to the giving of reasons.

C. In many situations the giving of notice of areas of concern will do no more than identify possible rather than the actual reasons. Thus as long as the Minister seeks representations for more than one area of concern the applicant in the absence of reasons will not know whether any particular area of concern played any part in the decision to refuse the application.

D. As the minister has a discretion to give the applicant notice of an area of concern, that discretion must itself be exercised reasonably. If not to give notice would result in unfairness then the discretion can only reasonably be exercised by giving notice. It is already the practice of the Minister to inform the applicant if one of the preconditions which are discretionary bars to success are not fulfilled. If this is the practice it is by no means obvious that there is any logical reason for not taking the same course in the areas where the Secretary of State has an even wider discretion when the identity of the issues will be less ascertainable by the applicant.

E. If the Secretary of State is correct in his contention the effect of the restriction on the obligation to give reasons is far reaching indeed. In any readily identifiable situation it will totally exclude the courts power of review. It would apply for example if the Secretary of State was guilty of discrimination contrary to section 44(1). On an application for judicial review there is usually no discovery because discovery should be unnecessary because it is the obligation of the respondent public body in its evidence to make frank disclosure to the court of the decision making process. ( R v Civil Appeal Board ex parte Cunningham [1992]ICR 816 ). If it does not then usually this would be a reason for the court ordering discovery. However, if the giving of notice can not be required, then for the same reasons it is said the respondent cannot be required to exercise the usual "cards up approach" and what is more discovery can not be required either since this would be open to the same objection that it could result in the identification of reasons. In practice therefore what the express prohibition on an appeal and review in section 44(2) does not achieve is achieved by the exclusion of a requirement to give reasons. Anisminic and Viscount Simonds statement of principle in Pyx Granite on the Secretary of State's approach are therefore bypassed.

F. As to Mr Richard's reliance on section 40(6) and an argument that where Parliament requires fairness it says so: the reason for section 40(6) is explained by the fact that section 40(6) involves an inquiry. A procedure which includes an inquiry requires an express provision. The wording of section 40(6) is therefore of no assistance in deciding the issue here.

G. The judgment of the Privy Council in Attorney General v Ryan is highly persuasive authority in favour of the Secretary of State not being relieved of his obligation to be fair by section 44(2). The language of section 16 which I have already cited is indistinguishable from that of section 44(2). Yet Lord Diplock in the giving the judgment of the Board said (at p. 727C\E):

"Their Lordships agree with the judges of the Supreme Court (as did the Court of Appeal) that as an applicant for registration as a citizen of The Bahamas under article 5(2) of the Constitution, the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. By virtue of section 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity. In view of the citations of so many cases in the judgments below, their Lordships upon this branch of the law do not find it necessary to do more than to refer to Ridge v. Baldwin [1964] AC 40 and particularly to the speech of Lord Reid, at pp. 74-76."

There was an issue in Ryan involving the constitution but this was dealt with as a separate issue by Lord Diplock and does not effect the significance of the relevant passage of the judgment to which I have referred. Judge J. distinguished Ryan because as he pointed out correctly in that case once the applicant was able to satisfy the statutory criteria the applicant had a right to be registered as a citizen while here in addition to the statutory criteria the Secretary of State also has a wide discretion to refuse an application so the Fayeds were not basing their application on a right but seeking the grant of a privilege.

However Ryan can not be distinguished on this ground. The days when it used to be said that a person seeking a privilege is not entitled to be heard are long gone. In ex parte Benaim it was argued that as the applicants for a gaming licence were seeking a privilege there was no obligation to be fair but this court (which included Lord Wilberforce as a member) rejected that contention. Lord Denning M.R. in his judgement (with which the other members of the court agreed) did however accept, as would still be the position to day, 36 years later, that the fact that the applicant did not have an entitlement could effect the content of what was required in order to be fair. Thus in that case it was held there was no obligation to give a reasoned decision. Nonetheless it was still the position according to Lord Denning that (at page 430G\H):

"the board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified. They must let him know what their impressions are so that he can disabuse them ..."

and later (at p431G\H) Lord Denning added:

"But, without disclosing every detail .....the board ought in every case to be able to give to the applicant sufficient indication of the objection raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not this court will not hesitate to interfere."

In addition Mr Richards accepted that the mere fact that this is a "privilege" case did not preclude the application of the rules of natural justice. This is not however the only reason why it is wrong to try and distinguish Ryan on this ground. What is primarily in issue on this appeal is not the content of the duty to be fair but whether that duty is excluded by section 44(2) and Lord Diplock as you would expect in relation to the legislation which he was considering dealt with this as a separate issue.

Mr Richards did however still seek to rely on the distinction between the statutory contexts for distinguishing Ryan and also drew attention to the fact that his argument was not advanced before the Privy Council and finally submitted that the approach of Lord Diplock should be rejected. This I am not prepared to do. I am relieved to think that the protection of an applicant for citizenship is no less in this country than it is in the Bahamas.

It remains for me to deal with the practical consequences of applying the Ryan approach . It does not require the Secretary of State to do more than to identify the subject of his concern in such terms as to enable the applicant to make such submissions as he can. In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the State.

I appreciate there is also anxiety as to the administrative burden involved in giving notice of areas of concern. Administrative convenience cannot justify unfairness but I would emphasise that my remarks are limited to cases where an applicant would be in real difficulty in doing himself justice unless the area of concern is identified by notice. In many cases which are less complex than that of the Fayeds the issues may be obvious. If this is the position notice may well be superfluous because what the applicant needs to establish will be clear. If this is the position notice may well not be required. However in the case of the Fayeds this is not the position because the extensive range of circumstances which could cause the Secretary of State concern mean that it is impractical for them to identify the target at which their representations should be aimed.

Mr Beloff argued that this is a case which despite section 44(2) the Minister is required to give reasons. As I have indicated the Minister is not prohibited by the section from giving reasons. On the contrary he has a clear discretion to give reasons. So Mr Beloff argues in a case like this which cries out for reasons the discretion can only lawfully be exercised by giving reasons.

I have already indicated that at common law there is no universal obligation to give reasons but despite this I would certainly regard this as a case where reasons should be given but for section 44(2). However in the light of the express prohibition on requiring the Secretary of State to give reasons I would not myself regard this a case were the need for reasons is so essential that fairness cannot be achieved without reasons as long as an applicant has been given sufficient information as to the subject matter of the decision to enable him to make such submissions as he wishes. I therefore reject Mr Beloff's argument.

The Home Office wrote to the Fayeds solicitors on the 16 March 1995 giving an assurance "that very careful consideration was given to all the representations put forward .....and that further dialogue or opportunity to make further comments was not considered necessary for the purpose of reaching a properly informed decision". This is not however an answer to these applications. The problem with the assurance, though no doubt sincerely given, is that it was given without knowing what information could have been provided if there had been compliance with the requirements of fairness so the Fayeds were aware of the targets they had to address.

It is true that until the areas of concern are identified so that it can be ascertained whether the Fayeds would be in a position to make further representations it will not be possible to say whether an injustice has occurred. However justice must not only be done but be seen to be done and it has not been seen to be done in relation to the application of the Fayeds. They have not had the fairness to which they are entitled and the rule of law must be upheld. This being so the Secretary of State is not entitled to take advantage of his own error and contend that the Fayeds have failed to show they have been prejudiced. It follows that the Secretary's decisions must be quashed so they can be retaken in a manner which is fair. This is the concern of the courts, Parliament not having excluded the obligation to be fair. They are not concerned with the merits of the decision which should then be made. That is the concern of the Secretary of State.

This decision does not involve any criticism of the Secretary of State or his Department. Until this court decided otherwise it was perfectly reasonable to take a different view of the procedural requirements on an application for naturalisation being made.

LORD JUSTICE KENNEDY:

1. Factual Background

The details of these two applications for naturalisation are relatively unimportant. Suffice to say that Mr Ali Fayed is married to a British citizen. Mr Mohammed Fayed's wife is a citizen of Finland. Both men have children who are British citizens, and both men have lived and worked here for many years. In due course each applied for naturalisation, and after an extraordinarily long delay each application was refused, no reasons being given.

2. Legal background

Mr Beloff, QC., for the appellants, submits that for each appellant the application for naturalisation was an important matter. Each sought from the Secretary of State for the Home Department an administrative decision in his favour, and to that end filled in a standard form which asked only for basic information and the identity of one or two referees. All that information was provided, and, Mr Beloff submits, natural justice required that if either application was to be refused the applicant should have some opportunity to deal with those matters which troubled the Secretary of State before the decision was made. Ideally the applicants should both had have that opportunity and reasons for the subsequent decision. If reasons had been given it might not have mattered so much that before the decisions were made the applicants had no opportunity to meet any case there may have been against them, because if the reasons disclosed any error on the part of the Secretary of State the applicants would have been able to press for a reconsideration of the relevant decision, but, if no reasons were to be given, it was all the more important that each applicant, before the final decision was made, had an opportunity to deal with those matters which resulted in the Secretary of State being minded to refuse.

The argument which I have just summarised is entirely in accordance with the approach frequently adopted by the English courts in recent years to administrative decisions having an important effect upon the lives of individuals, and many authorities can be cited to support that general proposition. For example, in R v Gaming Board ex parte Benaim (1970) 2 QB 417 Lord Denning, M.R. said at 431F, in relation to the application for a gaming licence :-

"Without disclosing every detail, I should have thought that the Board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer. That is only fair. And the Board must at all costs be fair. If they are not, these courts will not hesitate to interfere."

In that case it was not thought necessary for the Gaming Board when it made its decision to give reasons. Conversely in R v Lord Mayor of London ex parte Matson (1996) Admin LR 49 the unsuccessful candidate for the office of Alderman was held entitled to reasons, but was not able to demonstrate procedural unfairness although he was never informed of the case, if any, against him. As Neill L.J. said in that case at page 62E :-

"It is common ground that the law does not at present recognise a general duty to give reasons for an administrative decision; see Lord Mustill in Doody (1994) 1 AC 531 at 564E. But such a duty may be implied in appropriate circumstances. These circumstances will include the nature of the adjudicating process."

3. Statutory Framework

It has been common ground before us that each case does have to be considered against the background of the statutory provisions relevant to the application under consideration, and in the present case that means that it is necessary to look at the provisions of the British Nationality Act 1981 and subordinate legislation.

Part I of the Act deals with British citizenship and, as Mr Richards for the Secretary of State has pointed out, at an early stage it is possible to see a distinction being drawn between those entitled to citizenship, such as children of a British citizen born abroad (section 3(2)) and other children who the Secretary of State "may if he thinks fit" cause to be registered as British citizens (section 3(1)). Section 6 deals with applications for naturalisation by adults such as the present appellants. The section distinguishes between applicants who are married to British citizens (s.6(2)) and those who are not (s.6(1)). Consequently the application of Mr Ali Fayed fell to be considered under section 6(2), and that of Mr Mohammed Fayed under section 6(1) but for present purposes nothing turns on that distinction. When considering any application under section 6 the Secretary of State must be satisfied that the applicant fulfils the requirements of Schedule I. Those requirements differ to some extent, depending upon whether the applicant is or is not married to a British citizen, but again for present purposes nothing turns on that distinction. Broadly speaking what the schedule requires of an applicant (other than those in Crown Service) is :-

(1) a period of pre-application residence in the U.K.:

(2) compliance with immigration laws:

(3) good character:

(4) linguistic proficiency (not applicable to those married to British citizens):

(5) an intention to make his principal home in the U.K. (again not applicable to those married to British citizens).

Paragraph 2 of the Schedule enables the Secretary of State to waive certain of those requirements but he cannot waive the requirement of good character. Even if the requirements of Schedule I are satisfied the Secretary of State is under no obligation to grant a certificate of naturalisation. He may do so if he thinks fit. There is nothing in the Act or in the schedule to suggest that if the Secretary of State is minded to refuse he should make that fact known to the applicant before reaching a conclusion, but if the Secretary of State does grant registration or a certificate of naturalisation, and later becomes satisfied that the registration or the certificate was obtained by means of fraud, false representation or the concealment of any material fact section 40(1) provides that he may then deprive the citizen of his British citizenship. In that event section 40(6) provides that :-

"Before making an order under this section the Secretary of State shall give the person against whom the order is proposed to be made notice in writing informing him of the ground or grounds on which it is proposed to be made and of his right to an inquiry under this section."

Section 40(7) provides the mechanism for referring the matter to a committee of inquiry, which operates under the British Citizenship (Deprivation) Rules 1982, and all of that, Mr Richards submits, can usefully be contrasted with section 6 which makes no mention of any such procedure. Mr Richards submits that section 40(6) if applied to section 6 really sets out in terms Mr Beloff's case. He is contending that an applicant for naturalisation whose application it is proposed to refuse should receive "notice in writing informing him of the ground or grounds on which it is proposed (to refuse)". But if Parliament intended that course to be followed in relation to section 6 as well as in relation to section 40 why, Mr Richards asks rhetorically, did it not say so?

That brings me to section 44 headed "Decisions involving exercise of discretion". As I have pointed out, strictly speaking not all decisions under section 6 fall into that category. If, for example, an applicant is not of good character, he fails to satisfy a requirement of Schedule I which the Secretary of State cannot waive and therefore his application must be refused. Nevertheless counsel before us are agreed, and I accept, that for the purposes of section 44 any decision under section 6 is a discretionary decision, including a refusal because the Secretary of State is not satisfied that an applicant meets a mandatory requirement of Schedule I. That is because section 44 must be read in the context of the Act as a whole, which is permeated by the distinction to which I have already referred between those entitled to citizenship as of right and those who (like all applicants whose claims fall to be considered under section 6) can only obtain it if a discretion is exercised in their favour. Section 44(1) requires that there be no discrimination on grounds of race, colour or religion, and section 44(2) so far as material provides :-

"The Secretary of State .... shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State ...... on any such application shall not be subject to appeal to, or review in, any court."

Before Judge J, as he then was, and before us it was accepted that the final words of the subsection do not deprive the High Court or this court of all judicial review jurisdiction. The court cannot reconsider the merits of a decision, but it can consider if a decision was made ultra vires [see Anisminic Ltd v Foreign Compensation Commission (1969 2 AC 147 and R v SSHD ex parte Mehta (1992) Imm AR 512]. But what about the opening words of this subsection? Clearly, as it seems to me, they give to the Secretary of State the discretion not to assign any reason for the grant or refusal of any section 6 application, and I simply cannot accept Mr Beloff's submission that the discretion is one that in the circumstances could only be exercised one way, namely in favour of giving reasons.

4. Natural Justice

But Mr Beloff's more attractive submission is that because even in 1981 (when the Statutory provisions were re-enacted) in a situation like this, and especially if reasons were not going to be given for the decision itself, natural justice was held normally to require the decision-maker to give the applicant an opportunity to meet any case there might be against him; and because neither in section 44(2) nor elsewhere does this particular statute expressly remove that requirement, it must remain. Attractive though that argument is, I am unable to accept it. The plain intention of Parliament was to relieve the Secretary of State of the burden of giving reasons, in any case involving the exercise of discretion, to which burden but for the words of section 44(2) he would in my judgment be subject. If the Secretary of State must nevertheless canvass with the applicant a matter or matters which in his view weigh against the grant of citizenship that, in every case where there is ultimately a refusal, means that the reason or reasons for refusal will have had to be disclosed. If, as may often be the case, the Secretary of State has only been troubled about one matter, then the unsuccessful applicant will be in no doubt as to the reason for refusal and the Secretary of State will in reality have been required to assign a reason for the refusal, which is precisely what section 44(2) says should not occur. Even if at the consultation stage the Secretary of State indicates that he is troubled by more than one matter the situation will be much the same. The applicant's further submission may meet some of the Secretary of State's concerns, so that when the decision is made if no reasons are given the applicant will not know which matters continued to be of concern, but in reality at the consultation stage the Secretary of State will have been required to identify, albeit as it turned out inter alia , the reason or reasons for his refusal. Mr Beloff rightly points out that the wording of section 44(2) relates to the decision-making stage of the process, and not to any earlier stage, but as Judge J said "although the principle of audi alterem partem and the provision of reasons for the decision are distinct they are closely related and derive from the concept of fairness". I agree, and indeed I go further. In my judgment the relationship is such that Parliament cannot have overlooked it. Undoubtedly the words of the statute do impinge upon what without them fairness would require, but not, as it seems to me, to a particularly surprising extent. As Mr Beloff conceded, there will no doubt be many occasions on which the Secretary of State, for good reason, would prefer not to explain why he is minded to refuse or is in fact refusing citizenship. In his second affidavit Mr Rawsthorne on behalf of the Secretary of State said:-

"It is the practice to give reasons where refusal is based solely on failure to meet the residence, language or full capacity requirements; and not to give reasons where refusal is based, in whole or in part, on matters of judgment relating to, for example, the good character requirement or the applicant's future intentions or where security matters are involved."

During the hearing of the appeal the possibility was canvassed of an applicant being believed to be involved in crime abroad but the situation being such that if that information were to be revealed by the Secretary of State it might endanger sources of information. Consideration was also given to the situation where the grant of citizenship to an applicant might jeopardise relations with another sovereign state. Those are but two examples of situations in which the advantage of the Secretary of State not being required to give reasons or even to explain why he was minded to refuse is obvious. And when considering those examples it is important to bear in mind that the applicants for citizenship with whom we are concerned and to whom section 44(2) applies seek a privilege not a right. I accept that if my understanding as to the effect of section 44(2) is correct such an applicant is at a disadvantage when compared with many others who seek an administrative decision, but his position is not unique. Not all decision makers are required either to identify to those they are minded to find against the points which trouble them, or to give reasons for their decisions, as can be seen daily in any magistrates' court.

5. Attorney-General v Ryan (1988) AC 718

I come now to the authority which Mr Beloff put in the forefront of his case. By Article 5(2) of the Constitution of the Bahamas any person who on 9th July 1973 possessed Bahamian status and who is ordinarily resident in the Bahama Islands "shall be entitled upon making application before July 10, 1974 to be registered as a citizen of the Bahamas". By the proviso to section 7 of the Bahamas Nationality Act 1973 the Minister for Home Affairs may refuse an application for registration on specified grounds or "for any other sufficient reason of public policy". Section 16 of the same Act as far as material,

provided:-

"The Minister shall not be required to assign any reason for the grant or refusal of any application .... under this Act ... and the decision of the Minister ... shall not be subject to appeal or review in any court."

The appellant in that case applied for citizenship and was refused without reasons being given, so the case has obvious similarities when compared with the cases with which we are concerned, but:

(1) the prime issue before the Privy Council was whether the concluding words of the proviso to section 7 of the 1973 Act were ultra vires the constitution.

(2) counsel for the Attorney-General conceded that if, as was held, they were ultra vires the applicant, who was trying to exercise a right not asking for a privilege, was entitled to relief, because he had not been given an opportunity to meet the case against him.

The Privy Council therefore never had to consider as a contentious issue whether section 16 of the 1973 Act in any way restricted the applicant's right to know the case against him, which is the point at issue in the present case. I am therefore unable to derive any particular assistance from that case.

6. Conclusion

In my judgment these appeals turn in the end on a question of construction. How can this court properly give effect to the words of section 44(2) of the 1981 Act? In order to give effect to those words it seems to me that the Secretary of State when called upon to exercise his discretion must be relieved not only of any obligation to give reasons at the time of or immediately after he makes his decision, but also of any duty to indicate to an applicant at any earlier stage why he is minded to refuse. As Mr Richards points out, if Parliament intended otherwise why is there not to be found in section 44(2) some provision equivalent to that in section 40(6)? I would therefore dismiss these appeals.

LORD JUSTICE PHILLIPS:

"And it's greatly to his credit that he is an Englishman!"

When W.S. Gilbert wrote those words the sun never set upon the British Empire, but British nationality remains a keen aspiration of many who have made this country their home. The British Nationality Act 1981 ("the Act") sets out circumstances in which someone who has settled in Great Britain can reasonably hope that he will be granted British nationality. Schedule 1 to the Act sets out "Requirements for Naturalisation". These include a minimum period of past residence in the United Kingdom, compliance with the immigration laws, an intention to make the United Kingdom ones principal home (where the applicant is not married to a British citizen) and good character. Some of these requirements can be waived. Section 6 of the Act provides that where the Secretary of State ("the Minister") is satisfied that the applicant fulfils these requirements "he may, if he thinks fit" grant him a certificate of naturalisation as a British citizen. We have been told that the majority of those who satisfy the residential requirements have their applications granted.

Mr Mohammed Fayed and Mr Ali Fayed, but for one minor matter which the Minister has waived, satisfy the residential requirements. Mr Mohammed Fayed says that he wishes to make the United Kingdom his principal home, and there would seem no reason why the Minister should doubt this intention. Mr Ali Fayed is married to a British citizen. Both have applied for naturalisation as British citizens and both have had their applications refused. Neither while their applications were under consideration, nor when they were refused were they given any indication of what, if any, adverse factors opposed the grant of the privilege which they sought. They have applied for judicial review of these decisions. Each contends that the Minister has failed to comply with the requirements of natural justice in that the procedure has been unfair in two respects:

(i) The Minister failed to inform him of the matters which were causing him concern when considering his application, thereby depriving him of the opportunity to make representations in respect of them. I shall describe this complaint as 'failure to give disclosure'.

(ii) The Minister failed to give reasons for his decision.

The Minister contends that the requirements of natural justice did not require him either to give disclosure or to give reasons. He further contends that Section 44(2) of the Act precludes each of those obligations. That Section provides:

"The Secretary of State ... shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State ... shall not be subject to appeal to, or review in, any court."

Judge J. accepted the latter contention. He held:

"Although the principle audi alterem partem and the provision of the reasons for the decision are distinct, they are closely related and derive from the concept of fairness. Nothing in section 44(2) or in any other part of the legislation expressly permits the Secretary of State to be unfair to non-citizens and it would be astonishing if it did. In reality, however, the principle of fairness contended for in these cases means that as part of the continuing process of considering applications, if the Secretary of State forms a preliminary conclusion adverse to applicants he should notify them in sufficiently detailed terms to provide them with a proper opportunity to be heard notwithstanding the unequivocal language that he cannot be required to give any "reasons". If the opportunity to be heard is to have any value in practice the Secretary of State would be required to assign or identify the reasons for any adverse decision in advance. In my judgment, the imposition of such an obligation under the principle of fairness would be inconsistent with the language and effect of section 44(2) of the 1981 Act. Accordingly, the failure to give the applicants an opportunity to deal with matters considered by the Secretary of State to be adverse to their applications was not unlawful. The course he took was permitted by statute."

Accordingly he dismissed the Fayeds' applications. They now appeal against his decision.

In my judgment the appropriate approach to this case is one that Mr Richards for the Minister urged us not to take. I propose first to consider what obligations the requirements of natural justice would have imposed on the Minister in the absence of Section 44(2) and then to turn to consider the extent to which, if at all, these are excluded by that Section.

Mr. Beloff, Q.C., for the Appellants, submitted that natural justice demands that an applicant under Section 6, and each of the Appellants in particular, be informed of the nature of the case against his application and given a reasonable opportunity of answering it. Of the many cases that discuss the duty of disclosure, three are of particular relevance.

The nearest case to the present is the decision of the Privy Council in Attorney General v Ryan [1980] AC 718. That case concerned an application to be registered as a citizen of The Bahamas. The applicant was entitled to registration unless the Minister was satisfied of one of a number of matters - each one of which would reflect discredit upon the applicant. In reviewing the decision of the Supreme Court of the Bahamas, Lord Diplock said this:

"(1) Applicability of the principles of natural justice

In the Supreme Court both judges were of the opinion that the respondent had a constitutional right to a fair hearing in accordance with the principles of natural justice before his application to be registered as a citizen was rejected by the Minister; and that a failure to accord him this rendered the Minister's decision a nullity. This means that he was at least entitled to be informed of the nature of the case against acceptance of his application and to be given a reasonable opportunity of answering it. It does not mean that there must necessarily be an oral hearing conducted in accordance with procedures appropriate to trials in a court of law. What is an appropriate and fair procedure is very much a matter for the Minister to determine in his discretion having regard to the kind of things which he is required to take into consideration - in the instant case, the various matters referred to in the proviso to section 7 of The Bahamas Nationality Act 1973. Their Lordships, however, need not go further into this, on which ample authority is cited in the judgments of the courts below, since it is now conceded that neither at his interview with Mr. Walkine nor on any other occasion was the respondent given any indication of the grounds upon which the Minister contemplated rejecting his application for registration; so, cadit quaestio, he was given no opportunity of answering them.

Their Lordships agree with the judges of the Supreme Court (as did the Court of Appeal) that as an applicant for registration as a citizen of The Bahamas under article 5(2) of the Constitution, the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. By virtue of section 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity. In view of the citations of so many cases in the judgments below, their Lordships upon this branch of the law do not find it necessary to do more than to refer to Ridge v Baldwin [1964] A.C.40 and particularly to the speech of Lord Reid, at pp.74-76."

Ryan differs from the present case in that in Ryan the decision of the Minister deprived the applicant of the right to registration. Under Section 6 the applicant has no more than the hope of a grant of naturalisation in the discretion of the Secretary of State.

In R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417 the applicants, the proprietors of Crockford's, renewed an application to the Court of Appeal against the refusal of the Gaming Board to grant a certificate of consent to entitle them to apply for a gaming licence. The relevant provision of Schedule 2 to the Gaming Act 1968 provided:

"4. (5).....in determining whether to issue to an applicant a certificate consenting to his applying for the grant of a licence under this Act in respect of any premises, the board shall have regard only to the question whether, in their opinion, the applicant is likely to be capable of, and diligent in, securing that the provisions of this Act and of any regulations made under it will be complied with, that gaming on those premises will be fairly and properly conducted, and that the premises will be conducted without disorder or disturbance.

(6) For the purposes of sub-paragraph (5) of this paragraph the board shall in particular take into consideration the character, reputation and financial standing-

(a) of the applicant"

At issue was the extent of the duty of the Gaming Board to disclose to the applicants the case against them. As to the nature of Crockford's interest, Lord Denning, M.R., described it thus at p.429:

"Mr. Quintin Hogg criticised that outline procedure severely. He spoke as if Crockford's were being deprived of a right of property or of a right to make a living.....

Mr. Hogg put his case, I think, too high. It is an error to regard Crockford's as having any right of which they are being deprived. They have not had in the past, and they have not now, any right to play these games of chance - roulette, chemin-de-fer, baccarat and the like - for their own profit. What they are really seeking is a privilege - almost, I might say, a franchise - to carry on gaming for profit, a thing never hitherto allowed in this country. It is for them to show that they are fit to be trusted with it.

If Mr. Hogg went too far on his side, I think Mr. Kidwell went too far on the other. He submitted that the Gaming Board are free to grant or refuse a certificate as they please. They are not bound, he says, to obey the rules of natural justice any more than any other executive body, such as, I suppose, the Board of Trade, which grants industrial development certificates, or the Television Authority, which awards television programme contracts. I cannot accept this view. I think the Gaming Board are bound to observe the rules of natural justice. The question is: What are those rules?"

Lord Denning answered that question as follows:

"....the board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified in the sub-section. They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C.40 ; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180 . After all, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted.

Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest......

If the Gaming Board were bound to disclose their sources of information, no one would "tell" on those clubs, for fear of reprisals. Likewise with the details of the information. If the board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere."

That decision demonstrates two matters:

1) The duty to disclose the case that is adverse to an applicant for the exercise of a discretion does not depend upon the pre-existence of any right in the applicant.

2) The nature and degree of disclosure required depends upon the particular circumstances.

These two decisions assist in the application to the facts of the present case of the general principles summarised by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1AC 531 at p.560:

"(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result : or after it is taken, with a view to procuring its modification; or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

In the light of these authorities I am satisfied that, in the absence of Section 44, an applicant under Section 6 would be entitled to be informed of the nature of matters adverse to his application so as to be afforded a reasonable opportunity to deal with them. An applicant for citizenship has not at risk any vested right. In that respect this case differs from Ryan. The right for which he applies is, however, a right of great importance. It carries with it the rights of freedom of movement and establishment enjoyed by members of the European Community. It exempts from visa requirements in many parts of the world. It carries a right to vote. It is a legitimate aspiration for one who has established his home in this country, the more so if he has children here who have British Nationality and if his wife is a British National.

There is another side to the coin. The refusal of British Nationality to one who has, apparently, satisfied all the technical requirements of Section 6 is likely to carry the natural implication, both in this Country and abroad, that he has attributes of background, character or conduct that are disreputable.

I consider that these factors give the Appellants stronger grounds for urging a duty of disclosure than existed in the Gaming Board case. The refusal of the benefits of naturalisation and the adverse inferences that will be drawn from such refusal, are so serious that, as a matter of natural justice an applicant should not be visited with them without a fair chance to meet the adverse case that threatens this result.

Whether or not the requirements of natural justice impart an obligation to give reasons is often a difficult question of administrative law, the more so because the courts have been increasingly ready to find that such a duty exists, see De Smith, Woolf and Jowell at pages 457 to 464. In this case, when considering procedural fairness, the extent of the duty of disclosure and the duty to give reasons are interrelated.

For the reasons that I have given in relation to the duty of disclosure, I consider that, absent Article 44(2), the Minister would be under a duty to give reasons for refusing an application for naturalisation under Section 6 of the Act.

The provision that the Minister "shall not be required to assign any reason for the grant or refusal" of an application is clear and unambiguous. Mr Beloff argued that these words relate only to the Minister's "statutory duty" to give reasons and do not impinge on a parallel duty to give reasons, which exists at common law. This seems to me to be sophistry of a high order. The duty of Ministers of the Crown to act fairly in the performance of their administrative duties, which in appropriate circumstances imports a duty to give reasons, is a fundamental principle of our common law. Where the Minister is performing statutory duties, it may be correct to state that the duty to give reasons, if it exists, arises in consequence of an implication in the course of statutory interpretation, but the implication falls to be made because of the common law principle. I reject the suggestion that there co-exist common law and statutory duties to give reasons, and that Section 44(2) applies only to the latter. I am in no doubt that the express words of the Statute preclude the obligation on the Minister, that would otherwise exist, to give reasons for his decision.

Mr Richards' submission, which Judge J. accepted, was that a duty of disclosure would "frustrate the operation of Section 44(2) and the legislative purpose of protecting the Respondent from any requirement to disclose his reasons".

Section 44(2) has its origins in Section 26 of the British Nationality Act 1948, which was in almost identical terms. In 1948 it might well have been thought, having particular regard to the exclusion of "appeal to or review in any court" that the intention and effect of the sub-section was to render the decision of the Minister non-justiciable. By 1981, when the current Statute was enacted, such a view was no longer tenable in the light of the decision in " Anisminic v. Foreign Compensation Commission [1969] 2 AC 147. The relevant statutory provisions in Attorney General v. Ryan contained an identical "ouster clause" to that in the present case, but the Privy Council, applying Anisminic, held that it did not apply to a decision made without jurisdiction and that:

"It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority" - p.730."

In these circumstances Mr Richards rightly conceded that the Minister's decisions were justiciable. He attached no significance in the present context to the provision purporting to preclude review or appeal. In these circumstances I consider that it would be wrong, as I was initially inclined to do, to approach the provision that the Minister is not required to assign reasons for his decision as being designed to render his decision non-justiciable. That provision relieves the Minister of the disadvantages attendant on the duty to give reasons that are identified in De Smith, Woolf and Jowell at paragraph 9-045,

namely:

"....the possibility that reasons, especially if published, will unduly increase "legalisation" and the formal nature of the decision making process, place burdens upon decision makers that will occasion administrative delays, and encourage the disappointed to pore over the reasons in the hope of detecting some shortcoming for which to seek redress in the courts. In addition, a reluctance to give reasons perhaps because they may occasion harm (by, for example, causing personal distress, revealing confidences, or endangering national security) could discourage the making of difficult or controversial decisions or result in the production of anodyne, uninformative and standard reasons."

The removal of these disadvantages provides explanation enough for the existence of the provision.

Mr Richards' argument seeks to give greater effect to the words of the provision than their natural meaning bears. He submits, in effect, that they mean "the Minister is entitled to conceal the reasons for his decision". It is only this construction which renders it possible to argue that disclosure at the interim stage of the decision making process will frustrate the object of the provision. Disclosure of matters of concern to the Minister at that stage will by no means remove all the benefits that flow from being relieved of the obligation to give reasons for his ultimate decision, even if it may enable applicants, on occasion, to make a fair guess at what they are.

Even if the duty of disclosure were to remove essentially all the benefits of the relief from the obligation to give reasons, I would not be prepared to hold that the latter implicitly overrides the former. This is because I consider that the duty of disclosure is a more significant element in the fairness of the procedure than the duty to give reasons. The duty of disclosure is calculated to ensure that the process by which the Minister reaches his decision is fair. It enables the party affected to address the matters which are significant and thus helps to ensure that the Minister reaches his decision having regard to all the relevant material. The duty to give reasons is calculated to enable the party affected to see that the Minister has acted fairly in reaching his decision. While this can have a salutary effect on the process of reaching the decision, it does not have such a direct effect as the duty of disclosure.

For these reasons I cannot accept that the express relief from the duty to give reasons for his decision implicitly relieves the Minister from the duty of disclosure during the process of reaching that decision.

Mr. Richards drew our attention to the provisions of Section 40 of the Act. These include a specific procedure to be followed before a British citizen can be deprived of his citizenship. He has to be informed of the grounds upon which such action is proposed and is entitled to apply for an inquiry before a committee, chaired by a person having judicial experience. Mr. Richards suggested that this exemplified the kind of procedure for which provision would have been made had the legislature intended there to be a duty of disclosure in favour of applicants for naturalisation.

It is much more serious to be deprived of citizenship than to fail to be granted it, as is evidenced by the grounds of misconduct specified in Section 40 that must be established before one can suffer the former fate. For this reason

I was not persuaded that the existence of express provisions for precise and formal steps before a citizen is deprived of his citizenship carries the implication that no steps at all by way of disclosure have to be taken in respect of applications for citizenship.

For these reasons I have concluded that this appeal should be allowed and concur in the Order proposed by the Master of the Rolls.

Order: Appeals allowed with costs. Decision of Secretary of State quashed. Leave to appeal to House of Lords granted.